CLA-2 CO:R:C:F 088309 STB
District Director of Customs
880 Front St.
Room 5-S-9
San Diego, CA 92188
RE: Decision on Application for Further Review of
Protest No. 2501-90-000012, filed February 1, 1990, concerning
the classification of three miniature plastic cars from Mexico.
Dear Sir:
This is a decision on a protest filed February 1, 1990,
against your decision in the classification and liquidation of
three miniature plastic cars, designed for use with "Barbie"
dolls, entry made on July 17, 1989 and liquidated on November 3,
1989.
FACTS:
You classified the plastic cars under subheading
9503.90.6000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), the provision for other toys (except models)
not having a spring mechanism. Protestant claims that the
merchandise should be classified under subheading 9503.90.7020,
HTSUSA, the provision for model airplanes, model boats, and other
models, made to a scale of the actual article at the ratio of 1
to 85 or smaller. If the articles are classified as claimed by
protestant, they will be entitled to duty free entry under the
Generalized System of Preferences (GSP) (the items are
manufactured in Mexico).
The three items under consideration are the Barbie '57
Chevy, the Barbie Ferrari, and the Jazzie Volkswagen Cabriolet.
Samples of the three items and catalog promotions were provided.
The '57 Chevy is approximately 25-1/2 inches in length, 9 inches
wide and 5 inches in height. There is room for four Barbie dolls
to sit in the seats. The plastic body is light blue ("baby-
blue") and the plastic interior is pink. Some parts of the
automobile must be assembled (easy snap-on) including various
detail adding items that are constructed of plastic and are
chrome silver in color; these include hub caps, door side
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molding, decorative rear side molding and hood ornaments among
others. Imprinted on the rear side molding is the name "Bel
Air." The trunk opens and the tires roll. The hood, however,
does not open and neither do the doors. The dashboard is molded
plastic and provides no real detail; detail is added by paper
stickers representing dashboard items. Paper stickers are also
provided to represent the headlights, certain hood and trunk
ornaments, the material of the seats, and a license plate that
reads "BARBIE." The item has no detail on the underside to
represent such items as the chassis, shock absorbers, etc.
Instead, the appearance is one of toy-like molded plastic. There
is nothing to represent an engine. The '57 Chevy, is, however,
the most detailed of the three.
The catalog advertises the Barbie Ferrari to be a "detailed
replica of a 328 GTS Ferrari!" In actuality, the Ferrari has
little detail. The passenger seats, headlights, reflectors, hood
ornament, side moldings, and a "BARBIE" license plate, are
represented by the use of paper stickers. A sticker with the
"Ferrari" logo is also provided. The Ferrari is smaller than the
'57 Chevy and it seats only two dolls.
The Jazzie Volkswagen Cabriolet also has little detail and
is a rather crude representation of the actual vehicle. The
doors do not open and the only "detail" provided is in the form
of paper stickers representing dashboard items, reflectors,
headlights, etc.
The three items are not marketed as "models" per se and no
size scales are listed in the marketing material or on the boxes.
ISSUE:
Whether the Barbie cars should be classified as other toys
(except models) or as models?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRI's). The systematic
detail of the harmonized system is such that virtually all goods
are classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule an any relative
section or chapter notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI's may
then be applied.
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The competing provisions in this case are as follows:
1. Subheading 9503.90.6000, HTSUSA, the provision for
other toys (except models), not having a spring mechanism,
and
2. Subheading 9503.90.7020, HTSUSA, the provision for
model airplanes, model boats, and other models, made to
a scale of the actual article at the ratio of 1 to 85 or
smaller.
It is clear that the instant merchandise is designed for
amusement; therefore, if it is determined that the subject items
can be classified as models, they will be classified in Chapter
95 and particularly in subheading 9503.90.7020, HTSUSA. If it is
determined that these vehicles do not qualify as models, they
will be classified in subheading 9503.90.6000, HTSUSA as other
toys.
The primary determination that must be made, then, is
whether the subject merchandise should be classified as models.
When the TSUS was in effect, the court defined the term "model"
in the case of Lohzin & Born, Inc. v. United States, 79 Cust. Ct.
34, C.D. 4710 (1977). The Customs Court stated the following
regarding the term "model":
[To be a model] an article need not be an exact or
accurate representation of something in existence;
it is sufficient if it is more than a crude form
of a class of articles and recognizably represents
an article that existed in fact or legend.
Lohzin & Born, Inc. v. United States, 79 Cust. Ct.
34 at 41, C.D. 4710
There is no language in the HTSUSA or the Explanatory Notes to
indicate that this court decision is not applicable under the
HTSUSA; nor have there been any subsequent court decisions that
would cast doubt on the applicability of Lohzin. Since Lohzin
several Customs rulings have been issued which have interpreted
the above definition and many of those are referred to herein.
The importer claims that these vehicles are models because
they are representations of specific models of automobiles that
exist in fact, i.e., a 1957 Chevrolet Bel-Air, a 328 GTS Ferrari
and a Volkswagen Cabriolet Convertible. Presented as primary
proof that these items accurately (or at least somewhat
accurately) represent the actual automobiles is the fact that the
automobile companies gave the importer permission to use the
names of the automobiles and the automobile companies in the
marketing of the Barbie cars; these names also appear on the
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miniature vehicles themselves by way of stickers and other
accessories which can be affixed by the consumer. The importer
further contends that the detail raises the items above a "crude
form" of the actual automobiles and that, although the vehicles
are not marketed as being to an actual scale, they are, in fact,
manufactured to a certain scale relative to the real thing. In a
submission dated July 31, 1991, counsel for the importer states
that the Barbie Ferrari and the Volkswagen Cabriolet are made to
a scale of 1 to 6.5 and the '57 Chevy Bel Air is made to a scale
of 1 to 6. Counsel also states that although the vehicles are
constructed to scale, the miniature versions do have enlarged
passenger areas to facilitate the placement of Barbie therein.
It is our determination, however, that these items are not
more than crude representations of the actual vehicles. In
Headquarters Ruling Letter (HRL) 066841, dated June 5, 1981, we
discussed the Lohzin decision and stated the following:
...in our opinion the fact that a model can easily
or reasonably be related to a specific prototype
does not by itself mean that it is not crude. Further,
the court did not exempt models in this category
from the requirement that they must also be more
than crude representations. It is our view that
more than prototype recognition is necessary for
an article to be regarded as a model, and that some
degree of refinement is required to bring an article
into the model class.
The position taken in HRL 066841, as described above, is
required of Customs because there must be some dividing line
between toys and models; otherwise there would not be different
national breakouts for "models" and "other toys." Many toy
vehicles look somewhat like actual vehicles and thus the need for
the "detail" distinction which Customs has utilized on a regular
basis. The Lohzin decision does not overturn the basic
distinction between toys and models. The lack of detail present
on the subject merchandise, as described in the "facts" section
illustrates the crude nature of these vehicles.
Additionally, HRL 066841 states that the intention of the
manufacturer as to the class of merchandise to be produced must
be examined. This intention can be learned from the nature of
the marketing of the article, the construction of the article,
and the detailing of the article in question. HRL 066841 held
that the simple construction of the article, together with the
toy manufacturer's trademark as a prominent feature on the wheels
and the nature of the marketing of the article as a subordinate
part of another toy package were all factors that worked against
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the classification of the vehicle as a model. HRL 068329, dated
June 18, 1981, states that the commercial designation of an
article is "the first and most important tariff classification."
HRL 068329, citing Goat and Sheepskin Import, Co. v. United
States, T.D. 32254, 5 C.C.P.A. 178 (1914). HRL 084301 dated
September 4, 1990, finding that a battery powered small plastic
car was a toy, based its conclusion on the packaging and
advertising of the vehicle and the lack of intricate detailing.
The Barbie cars have certain similarities to the merchandise
that Customs refused to classify as models in HRL 066841.
Although the vehicles are not sold as a subordinate part of
another toy package, as are the cars of HRL 066841, the Barbie
cars are clearly marketed for use with the Barbie dolls and other
Barbie toys and are designed for that purpose. The "Barbie"
license plate stickers that are included with the cars, the fact
that the cars are not advertised as being constructed to any
particular scale and the fact that the model year of only one of
the items is even mentioned on the box ('57 Chevy) further
illustrates the intention of the manufacturer to produce toys for
use with Barbie dolls and not items in the model car category.
In sum, the lack of detail (crude nature) and the marketing of
the subject merchandise are important factors which necessitate
the determination that the Barbie cars should be classified as
other toys and not as models.
HOLDING:
The Barbie '57 Chevy, the Barbie Ferrari, and the Jazzie
Volkswagen Cabriolet are classified in subheading 9503.90.6000,
HTSUSA, the provision for other toys (except models) not having a
spring mechanism. The applicable duty rate is 6.8% ad valorem.
The protest should be denied. A copy of this decision
should be attached to the Form 19 to be returned to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division